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IN THE COURT OF II ADDITIONAL SENIOR CIVIL JUDGE,
EAST GODAVARI AT RAJAMAHENDRAVARAM.
PRESENT: Smt.B.Padma,
II Addl. Civil Judge (Senior Division),
Rajamahendravaram
Monday, this the 10th day of February, 2025.
OS No.815/2014
BETWEEN:
1. Arubolu Gangabhavani, W/o. Late Venkata Ratnam, A/38 years, Property, Gadharada, at presently at D.No.2-10, Mukundavaram, Rangampeta mandal, Peddapuram JCJC.
..Plaintiff.
AND:
1. Arubolu Lakshminarayananamma, W/o. Late Padmaraju, Hindu, A/65 years, Property, D.No.2-58, Gadarada village, Korukonda Mandal, Rajahmundry JCJC.
2.Arubolu Ramalingeswara Rao, S/o. Late Padmaraju, A/45 years, Occupation nil, D.No.2-58, Gadarada village,Korukonda Mandal, Rajahmundry JCJC.
3.Adabala Durga Prasad, S/o. Trimuthulu, A.50 years, Property, D.No.2-58A, Gadarada village,Korukonda Mandal, Rajahmundry JCJC.
4.Vakacharla Laxmana Rao, S/o. Lakshmana Murthy, A/45 years, Property, D.No.2-58A, 2
Gadarada village,Korukonda Mandal, Rajahmundry JCJC.
5.Vakacharla Suresh, S/o. Venkata Ramana, A/45 years, Property, D.No.2-58A, Gadarada village,Korukonda Mandal, Rajahmundry JCJC.
6.Maddala Durga Rao, s/o. Dharma raju, A/40 years, Property, D.No.2-58A, Gadarada village,Korukonda Mandal,
Rajahmundry JCJC...Defendants.
This suit is came on 07.01.2025 for final hearing before me in the presence of Sri B.Saibaba, Advocate for Plaintiff and of Sri N.Sai Kumar, Advocate for Defendant Nos.1 and 2, and Sri V.Kumara Swamy, Advocate for Defendant No.3, and D4 to D6 were remained exparte and the matter having stood over for consideration till this day this court delivered the following:
J U D G M E N T
1. This suit is field for declaration of title of plaintiff over the plaint schedule property, for consequential possession of the same after having ejecting the defendants there from, recovery of Rs.84,000/- towards rents on item C of plaint schedule property from January 2013 to June 2014, future rents, costs and such other reliefs.
2. The averments of the plaint in brief are as follows:
Plaintiff is the absolute owner of the plaint schedule property having acuqired the same under registered will dated 20.06.2012 executed by her husband Arubolu Venkata Ratnam who died on 23.06.2012. Originally the plaint schedule property was a vacant site which is an extent of
Ac.0.09 cens in S.No.453 of Gadarada village. The said property was acquired by the husband of plaintiff under registered settlement deed 3
dated 24.06.1993, the said settlement deed was accepted by the
husband of plaintiff and acted upon. While enjoying the property the husband of plaintiff viz., Anubolu Venkata Ratnam constructed tiled house by availing loan from Korukonda Mandal level Co-Operative
Building society at Korukonda in the year 1994, the said loan was also discharged by him. Subsequently in the year 2011 the husband of plaintiff also got constructed four shop rooms towards north of his titled house with his self earnings and the panchayath was also given door
No.2-58A. All these facts were also known to all the villagers including defendants. Thus the said Arubolu Venkata Ratnam was in exclusive possession and enjoyment of the said property by exerciding his rights over the aforesaid property till his death. When the said Venkata Ratnam proposed to give four shop rooms for lease, he suddenly fell stick and he was bed ridden for a period of 1 month. Due to his aliment, in a sound and disposing state of mind, the said Anobulu Venkata Ratnam executed an unregistred Will on 20.06.2012 bequeathing the afore said properties to his wife who is plaintiff in the suit.
After the death of her husband Venkata Ratnam, due to the harassment caused by defendants 1 and 2, the plaintiff shifted her residence to Mukundavaram where the parents of the plaintiff is residing.
Taking advantage of the same, the defendants 1 and 2 with an intention to cause loss to the plaintiff and her children induced defendants 3,5,6 and one Kotini Srinivas in the month of January, 2013 on a monthly rent of Rs.2000/- for each shop without the knowledge and consent of the plaintiff. In spite of the plaintiff’s repeated demands, the defendants 3,5,6 and Kotini Srinivas who are hand in glow with defendans 1 and 2 failed to give rent or vacate the plaint schedule properties. The plaintiff also raised dispute before elders viz., Dasari Venkateswarlu, Pepakayala 4
Rambabu etc., but in vain.
The plaintiff also came to know that the defendants 1 and 2 tried to create fradulent documents in the name of 3rd parties with an intention to create troubles to the plaintiff. In fact the defendants 1 and 2 have no right, title or interest over the plant schedule properties. There upon the plaintiff got issued a legal notice dated 06.05.2014 demanding the defendants 1,2 3, 5 and Kotini Srinivas to vacate the plaint schedule properties. Having received the same, the defendants 1 to 3 , 5 and
K.Srinivas (who died, subsequently) neither give reply nor comply with the demand made by the plaintiff.
Subsequently the revenue people issued title deed pass book and pattadar pass book in favour of plaintiff and mutated her name in the revenue records pertaining to the landed property. After the death of her husband, plaintiff is in exclusive possession and enjoyment of the same without any objection to the knowledge of one and all including the defendants 1 and 2. The plaintiff also approached the officials like
Panchayath and AP Transco who are hand in glove with defendants 1 and 2 failed to respond properly. Hence the suit.
3. Defendants 1 and 2 filed written statement by denying all the material allegations made in the plaint and contended that suit is barred by Order 2 Rule 2 CPC, bad for non joinder and misjoinder of parties and the husband of plaintiff never executed any will in favour of plaintiff and the said will is forged and fabricated not executed in sound and disposing state of mind and created for the purpose of suit and the plaint schedule property is the ancestral of the themselves and late Venkata Ratnam.
Later Arubolu Venkata Ratnam has no exclusive right in plaint schedule property. The ancestral of the parties by name Venkata Ratnam died possessed of extensive property leaving behind him two sons by name 5
Late Appalaraju and late Padmaraju. After the death of Venkata Ratnam his two sons Appalaraju and Padmaraju divided the properties into equal shares. The plaint schedule property and other properties fell to the share of Arubolu Padmaraju. Padmaraju died intestate leaving behind him his widow 1st defendant, and his two sons i.e., 2nd defendant and Arubolu
Venkata Ratnam husband of the plaintiff and daughter by name Adabala
Suseela of Seethanagaram. As per the amended Act Suseela also is a co- coparcener in the joint family property along with Venkata Ratnam and 2nd defendant. 1st defendant inherited her 1/4th share in the husband’s property and she is also co-sharer. Thus there is no exclusive right to late
Venkata Ratnam on the plaint schedule property. The plaint schedule property and other properties remained in joint possession and enjoyment of the sharers. There is no division of properties including the schedule properties.
Late Padmaraju has no exclusive right to execute the settlement deed dated 24.06.1993 in favour of the plaintiff's husband and it is not binding on other shares and they are not parties to the alleged settlement deed and it is a void document, never acted upon. Shops are constructed by the defendants with the joint family funds and it is not exclusive property of the plaintiff's husband. The plaintiff’s husband has no avocation and is addicted to vices. He died due to excessive drinking habit. The alleged will dated 20.06.2012 is not true, valid and binding and it is not executed in a sound and disposing state of mind and it is the fabricated and forged document. The signature on the alleged will is forged one. He has no testamentary capacity to execute the alleged will.
He died on 23.06.2012 and in such suspicious circumstances internal and external evidence shows the will is fabricated one. No rights accrued to the plaintiff in pursuance of the alleged will.
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The property is being an ancestral property and all of them are in joint enjoyment of the property, the plaintiff has no exclusive right in the property and they are in Joint possession of family properties. The title deed and pass book issued in favour of the plaintiff are not biding on the real owners i.e., defendants 1 and 2 and their sister Suseela as already and in fact the original pass book are with them. The plaintiff and her husband has no exclusive right over the plaint schedule property. In fact the shops were constructed during 2010 during the life time of plaintiff’s husband. The debts contracted for constructions of shops are still subsisting. Therefore, prays to dismiss the suit with costs.
4. 3rd defendant filed written statement by denying all the material allegations made in the plaint and contended that late Arubolu Venkata
Ratnam was the kartha of Arubolu family, he got 2 sons late Appalaraju and Peddaraju. Subsequent to demise of Venkataratnam kartha of the family, his sons Appalaraju and Peddaraju got their house property partitioned orally. In the oral partition one tiled house was given to
Appalaraju and one tiled house bearing No.2-59 was given to Paddaraju towards his share which is in an extent of 11 ½ cents surrounded by compound wall and on the northern side vacant site of 3.00 cents .
Late Paddaraju got 2 sons late Venkataratnam and Rama
Lingeswara Rao who got their tiled house bearing No.2-58 is oral partition. While Paddaraju was alive all the joint family members lived together in the tiled house. Subsequently to the demise of Paddaraju late venkataratnam and Ramaligeswara Rao orally partitioned the tiled house, southern portion of the tiled house has given to plaintiff’s husband late Venkata Ratnam and northern portion of the tiled house was given to Ramalingeswara Rao towards their share.
During the life time of Venkata Ratnam the husband of the plaintiff, 7
Ramalingeswara Rao and Late Venkata Ratnam got constructed 4 pakka shops in the vacant site of 3 cents in the year 2009 and they orally partitioned and in the partition 2 shops on the East are given to
Ramaligeswara Rao towards his share and 2 shops are given to late
Venkata Ratnam while alive he leased out his 2 shops and collected the rental amounts and appropriated the same for himself.
Arubolu Ramlingeswara Rao leasedout one shop situated on the extreme east to him on a monthly rent of Rs.1000/- and he has been running his cut-piece business since 2010. Ramalingeswara Rao contacted debts from 3rd parties to meet the family expenses and for education expenses to his children he is indebted neck deep debts and alienated shop No.1 in item No.II of plaint schedule to him for valid consideration of Rs.2,20,000/- under a registered sale deed dated 20.11.2013 and he has been in possession and enjoyment of the shop
No.1 from the east on his own right and title and sale deed dated 20.11.2013 is legal and valid and binding on the plaintiff and other family members and he got the sale deed dated 20.11.2013 executed by plaintiff’s mother in law Lakshminarayananamma, brother of plaintiff’s husband Ramalingeswara Rao, his wife and children to safeguard his interest in his property and plaintiff knows personally about the construction of the 4 shops and the partition of those shops between her husband Venkata Ratnam and his brother Ramalingeswara Rao and such alienation noway effect the right and interest of plaintiff and her children adversely. Plaintiff with a malafide intention to defeat his right and title in shop No.1 which he has purchased for valid consideration filed the suit and the schedule appended to the settlement deed dated 24.06.1996 is ancestral joint family property of plaintiff’s husband father Paddaraju, his sons Venkata Ratnam and Ramalingeswara Rao and late Paddaraju had 8 no exclusive right to settle the vacant site of 8 cents in favour of Late
Venkata Ratnam the husband of the plaintiff exclusively and that settlement deed dated 24.06.1996 is a nominal document which was executed for purpose of borrowing loan from the co-operative society of
Korukonda by furnishing as security. By the time of execution of the settlement deed dated 24.06.1993 late Venkata Ratnam was not married, he was residing with his parents and brother Ramalingeswara Rao and the settlement deed was not acted upon and the site was in possession and enjoyment of Paddaraju and other family members. The settlement deed dated 24.06.1993 is not legal and valid not acted upon and not binding on the members of the family.
Late Venkata Ratnam the husband of the plaintiff was seriously fell ill and bed ridden he could not move out and he was not in a position to know what was happening, finally he died on 23.06.2012 in his house in
Gadarada village and all his funeral sermonies and rites are performed in
Gadarada village, plaintiff her minor children were lived with her mother in law (D1) in the ancestral house in Gadarada village till January. 2013 with his mother in law and other family members. D1 and D2 provided every facility to the plaintiff and minor children, they treated plaintiff and children with all love and affection but never ill treated and harassed the plaintiff and her children. Plaintiff left to her parents house at
Mukundavaram with her minor children on the occasion of sankrathi festival and residing there. That plaintiff is ill advised by her parents and family members she developed grouse and enmity, at the evil advise of her parents she brought into existence the unregistered will dated 20.06.2012 at Mukundavaram with the active support of scribe and attestors pressed into service and got issued legal notice dated 06.05.2014 with false allegations. On receipt of of the notice he along 9 with elders Sri Mandala Suryanarayana @ Bujji of Sitharamapuram
Village, 2) Garaga Venkateswara Rao of Gadarada village approached the plaintiff and her parents appraised the facts and circumstances and conveyed them that he purchased the shop No.1 for valid consideration of Rs.2,00,000/- under a registered sale deed dated 20.11.2013 from
Ramalingeswara Rao his mother and others. Having believed the bonafide of the plaintiff and her parents he did not issue reply notice.
But surprisingly plaintiff got the suit filed with false allegations which is not sustainable under law. Plaintiff is not entitled to seek for any relief against him in the suit. The settlement deed dated 24.06.1993 and the un-regsitered will dated 23.06.2012 are not legal and valid not binding him and the suit against him is liable to be dismissed. Therefore, prays the court to dismiss the suit with costs.
5. Defendants 4 to 6 were remained Ex-parte.
6. Basing on the pleadings the following issues were framed for trail.
1. Whether the plaintiff has got exclusive title over the entire plaint schedule property?
2. Whether the plaintiff is entitled for declaration of title and
recovery of possession of the plaint schedule property as
prayed for?
3. To what relief?
The plaintiff apart from claiming declaration of her title, consequential recovery of possession of plaint schedule property also sought for recovery of Rs.84,000/- towards rents on item No.C of plaint schedule property from January 2013 to June 2014 and future rents. But issues were not framed in that regard, it might be due to inadvertence.
However, this court by exercising power Under Order.14 Rule.5 CPC framed the following additional issues.
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Additional Issues:
1. Whether the plaintiff is entitled to recover Rs.84,000/-
towards rents on item No.C of plaint schedule property
from January 2013 to June 2014 as prayed for?
2. Whether the plaintiff is entitled for future rents as prayed for?
Since all the parties to the suit lead evidence having knowledge on the relief claimed by the plaintiff, this court feels that there is no need to give any opportunity to lead any additional evidence.
7. During the course of trial, on behalf of the plaintiff, plaintiff got herself examined as PW1 and got marked Exs.A1 to A10 and further got examined one K.T.S.Varaprasad who is 2nd attestor of Ex.A2/Will dated 20.06.2012 as PW2 and one Pepakayala Rambabu as PW3 and one
Bathina Thatha Rao Samuel who is 1st attestor of Ex.A2/Will dated 20.06.2012 as PW4. Plaintiff got marked Exs.A11 to A13 during the cross examination of DW1 by way of confrontation.
On the other hand, on behalf of 3rd defendant, he himself examined as DW1 and got marked Exs.B1 to B3. He further got examined one Kola
Satyanarayana as DWs.
On behalf of the 1st defendant, herself got examined as DW3 and got marked Exs.B4 to B9.
On behalf of the 2nd defendant got himself examined as DW4 and got marked Exs.B10 and B11. He further got examined one Rasa Venkanna as DW5, one Adabala Satyanarayana Murthy as DW6 and Arubolu
Rajababu as DW7.
The learned counsel for the Defendants 1 and 2 got marked
Ex.B1/Registration extract of registered sale deed dated
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14.07.2017 during the cross examination of PW1 dated
18.10.2019. But due to oversight, while marking the documents
on behalf of the defendants the number to the exhibits of B
Series was started with B1 instead of Ex.B2. However Ex.B5
which was got marked by the 1 st defendant is the same
document which was marked as Ex.B1 during the cross
examination of PW1. Therefore herein after Ex.B1 will be
referred as Ex.B1/Ex.B5.
8. ISSUE NO.1:
Whether the plaintiff has got exclusive title over the entire plaint schedule property?
Plaintiff claiming her exclusive title over the plaint schedule property through a registered will dated 20.06.2012 executed by her husband Late Arabolu Venkata Ratnam who died on 23.06.2012. It is the further contention of the plaintiff that her husband acquired the same through a registered settlement deed dated 24.06.1993 executed by his father paddaraju which is a vacant site of Ac.0.11 cents in S.No.453 of
Gadharada Village and he constructed a tiled house and four shop rooms towards North of tiled house with his self earnings and was in exclusive possession and enjoyment of the same by exercising his rights over the said properties during his life time and bequeathed the same to her under Will.
On the other hand, it is the contention of the defendants that the plaint schedule property is ancestral property of Late Arabolu Venkata
Ratnam who is the paternal grandfather of husband of plaintiff, defendant 2 and and he died possessed of extensive property leaving behind his two sons by name late Appalaraju and Padmaraju and they divided the property into equal shares and plaint schedule property and 12 other property fell to share of Padmaraju who died intestate leaving behind him 1st defendant, two sons and one daughter and the same is remained in their joint possession and late Padma raju has no exclusive right in the plaint schedule property to execute the settlement deed
dated 24.06.1993 in favour of the plaintiff’s husband and the same is
void (nominal), not true, valid and never acted upon and not binding on the other sharers and they are not parties to the alleged settlement deed and shops are constructed by the defendants with the joint family funds and it is not exclusive property of plaintiff’s husband and her husband died due to excessive drinking habit and the alleged will dated 20.06.2013 is not true, valid and binding and it is not executed in a sound and disposing state of mind and it is the fabricated and forged document and the signatures on the alleged will is forged one and Late
Arubolu venkataratnam has no testamentary capacity to execute the alleged will and he died on 23.06.2012 and in such suspicious circumstances evidence shows that the will is fabricated one and no rights accrued to the plaintiff in pursuance of the alleged will.
Since the plaintiff is claiming her exclusive right over the plaint schedule property by propounding a will executed by her husband, it is the burden of the plaintiff to prove the Will. To prove her contention, plaintiff relied on oral evidence of PW1 to PW4 and documentary evidence under Exs.A1 to A13.
On the other hand, the defendants relied on the oral evidence of
DW1 to DW7 and documentary evidence under Exs.B1 to B11.
PW1 in his chief affidavit filed in lieu of her examination in chief reiterated the contents of the plaint and further contended that averments of the written statement filed by the defendants are false and incorrect.
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PW2 who is 2nd attestor of Ex.A2/will dated 20.06.2012 in his chief affidavit filed in lieu of examination in chief deposed that late Arabolu
Venkata Ratnam S/o. Padmaraju of Gadharada Village who executed
Ex.A2 signed in the will in his presence, Batina Tatarao and Nallamilli
Munireddy and they witnessed while Arabolu Venkata Ratnam signed on the will and he acted as 2nd attestor and Nallamilli Munireddy scribed the same and they all signed in the presence of executant who witnessed the same and executed the same on his volition and in sound and disposing state of mind.
PW3 who is the 3rd party who allegedly acted as elders in the disputes raised by the plaintiff with D1 and D2 in his chief affidavit filed in lieu of examination in chief deposed that he was acted as elders along with Dasari Venkateswaralu for amicable settlement of the dispute between plaintiff and D1 and D2 but D1 and D2 are not interested and the defendants have no right, title or interest over the plaint schedule property and after the death of her husband, plaintiff is in exclusive possession and enjoyment of the same with knowledge of one and all including D1 and D2 and he know the execution of settlement will and those documents shown to him at the time when he approached D1 and
D2 for the said amicable settlement.
PW4 who is the 1st attestor of Ex.A2/Will dated 20.06.2012 in his chief affidavit filed in lieu of examination in chief corroborating the evidence of PW2 about the execution of Ex.A2/will and they are present at the time of execution and witnessing the signatures of executant and the executant saw while they signed on Ex.A2/will and one Nallamilli
Munireddy scribed the same.
There is no dispute about the death of Late Arubolu Venkata Ratnam.
Though the learned counsel for the D1 and D2 during the cross 14 examination of PW1 suggested that Ex.A3/death certificate of Arabolu
Venkata Ratnam is the fake document, since it is an admitted fact that the Arubolu Venkataratnam died on 23.06.2012, there is no much need to discuss on Ex.A3/ Death certificate of A. Venkataratnam. Further the defendants admitted about the issuance of legal notice by the plaintiff
before filing this suit, hence there is also no need to discuss on Ex.A4 to
A10 which are office copy of legal notice, acknowledgments from the defendants 1 to 6. Ex.A11 to A13 are no way helpful to prove the title of the plaintiff over the plaint schedule property.
The plaintiff who is the propounder of the will has to prove the same as mandates Under Section 63 of Indian Succession Act r/w.
Section.68 of Indian Evidence Act.
In order to prove the said Will dated 20.06.2012, the plaintiff got marked the same as Ex.A2. To fulfill the requirement under Section. 63 of
Indian Succession Act, the Ex.A2 shall be in writing, signed or thumb marked by the executant and attested by two or more witnesses and attestors who signed or affixed his mark to the Will so placed that it would intend to give effect as writings to the Will and each of the said witness must see the attestor signed or affixed his mark to the Will, and each of them should sign the will in the presence of the testator.
As could be seen from Ex.A2/unregistered Will dated 20.06.2012 the same was in writing and signed by alleged testator and attested by two witnesses. Therefore Ex.A2/unregistered will dated 20.06.2012 complied the conditions as required under Section. 63 of Indian
Succession Act.
In so far the proof of execution of will is concerned, as will is compulsory attestable document, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving 15 its due execution. The plaintiff in order to prove due attestation and execution of Ex.A2/will as mandates under Section.68 of Indian Evidence
Act got examined PW2 and PW4 who are said to be attestors of Ex.A2/will
dated 20.06.2012.
The learned counsel for the plaintiff argued that the evidence of
PW2 and PW4 who are the attestors of Ex.A2/will dated 20.06.2012 proves the attestation and execution of Ex.A2/will by late Arabolu
Venkata Ratnam and the defendants though contended that the signatures on the Ex.A2/will is forged they are not taken any steps to send to Expert opinion and in view of that the will is proved by the plaintiff (PW1). To support of his contention relied on a decision reported in “2014 (5) ALT 232 between Anantharaju Venkata Seshamma
Vs. Rajupalem Seshavataram (Died) and others”
On the other hand, the learned counsel for the defendant argued that the Ex.A2/will is forged and fabricated one and the attestors of the will are not the villagers of Gadarada and according to the plaintiff
Ex.A2/will was executed at Gadarada and there is no reason why the attestors were called from Rangampeta which is far away from gadarada and further the husband of PW1 got admitted in hospital as inpatient for 5 days prior to his death but the Ex.A2/will executed by the husband of plaintiff prior to 3 days to his death which is also a suspicious circumstance and the plaintiff sold some property and there is no whisper about the Ex.A2/will and during the cross examination of PW1, she stated that she discovered Ex.A2/will in the year 2011 but under Ex.B1/Ex.B5 which is the certified copy of settlement deed dated 14.07.2017 which was got marked by the defendant through the plaintiff by way of confrontation, it was mentioned that her husband died intestate and she categorically stated that while under going treatment at Suraksha 16
Hospital, Rajamahendravaram her husband died and she voluntarily stated that after one month of death of her husband while verifying her clothes in beeruva she found the will but she did not produce the said will any where till filing of the suit and P.W1 further stated that she do not know why her husband executed a will and she has not asked her husband to execute the will in her favour so all these are suspicious circumstances surrounding the execution of Ex.A2/will by late Arabolu
Venkata Ratnam as such the plaintiff failed to prove the execution of will as well as failed to remove suspicious circumstances.
Admittedly, PW2 and PW4 are not the residents of Gadarada and all PW1,2 and 4 admitted during their cross examination that Ex.A2/will
dated 20.06.2012 was executed at Gadarada and further admitted that
late Arabolu Venkata Ratnam was bedridden and he was in Gadarada
Village. Both PW2 and PW4 during their cross examination stated that late Arabolu Venkata Ratnam called them. PW2 further stated that on 19.06.2012 he went to the house of Arabolu Venkata Ratnam to see him as he was suffering with ill-health and that he revealed his intention to execute will and asked PW2 to come to next day and at the time of execution of will himself, Arabolu Venkata Ratnam, scribe by name
Munireddy and another attestor were only present and family members of Venkata Ratnam were not present.
PW1 during her cross examination stated that her husband was treated as inpatient in the hospital for 5 days and she voluntarily stated that her husband was treated in Suraksha Hospital, Rajamahendravaram while placing ignorance the name of doctor who treated her husband. If the evidence of PW1 that her husband was treated as inpatient for 5 days in the hospital was taken into consideration , the evidence of PW2 that he went to house of Arabolu Venkata Ratnam on 19.06.2012 to see 17 him as he was suffering with ill-health and that he revealed his intention to execute will and asked him to come on next day appears as false.
When admittedly husband of PW1 was treated as inpatient in the hospital for 5 days, it is improbable of non presence of any family members with him while execution of Ex.A2/will as such the evidence of P.W4 that except four members including the executant of the will, none of the family members were present at the time of execution is also appears as improbable and suspicious circumstance.
It is well settled that even though the will is otherwise proved according to the standard of proof as envisaged by the provisions of
Evidence Act and Succession Act regarding due execution and attestation, if there are suspicious circumstance inherent in the transaction the onus would still be on the propounder to explain them to the satisfaction of the court. In other words, when genuineness of a will is in question apart from execution and attestation of will, it is also the duty of a person taken declaration (propounder) about the validity of the will to dispel the surrounding suspicious circumstance existing, if any. So, the onus is always on the propounder to remove all doubts and explain the circumstances to the full satisfaction of the court.
The decision relied on by the learned counsel for the plaintiff reported in “2014 (5) ALT 232 between Anantharaju Venkata
Seshamma Vs. Rajupalem Seshavataram (Died) and others” also it was clearly stated at para 14 that Beneficiary under a will must not only prove its execution but must also explain the suspicious circumstances in relation to will. Therefore, the contention of the plaintiff that plaintiff proved the execution by examining attestors of Ex.A2/will is not found force and the plaintiff has to remove the cloud of suspicion surrounding the execution of the Ex.A2.
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It is germane to note that what are the suspicious circumstance surroundings the will. In catena of decisions of Hon’ble Supreme Court and High Court illustrated suspicious circumstances stated below:
(1) as to the genuineness of the signature of the testator.
(2) the condition of testator’s mind.
(3) Disposition made in the will being unnatural, improbable, or unfair in the light of the relevant circumstances. In other words, some of the natural heirs had been disinherited in the will, without any reason for that acceptance.
(4) There might be over indication in the will to show that the testator’s mind is not free.
(5) Feeble mind which is likely to be influenced.
(5) unfair and unjust disposal of property.
(6) Will is not produced for many years despite occasions to produce.
(7) Incorrect recitals of essential facts.
(8) Shaky signature (9) If the propounder himself takes a prominent part in execution of will which confers a substantial benefit on him, that it is also a circumstance to be taken into account.
The above suspicious circumstances are not exhaustive, they are illustrative. In the light of above said circumstances, the court has to examine, whether there are any suspicious circumstance surrounding the will in question as contended by the defendant.
In the present case on hand, it is one of the suspicious circumstance 19 surrounded in execution of Ex.A2/will that the executant is not in sound and disposing state of mind at the time of execution of Ex.A2/will dated 20.06.2012, and the Ex.A2/will is not produced at any where and is not referred in Ex.B1 when the PW1 had a knowledge about the same after 1 month after the death of her husband which are in view of the above said principles are the suspicious circumstances.
PW1 during her cross examination at one point of time stated that she discovered Will in the year 2011 and at another point stated that one month after death of her husband, she had seen the will/Ex.A2 in her beruva, at her house in Gadarada Village. P.W1 denied the suggestion that in Ex.B1/B5 she stated that her husband died intestate without executing any will. Though she denied the same as could be seen from the Ex.B1/B5 certified copy of Registered sale deed dated 14.07.2017 executed by P.W1 infavour of D.Somasankara Rao it was clearly mentioned that Arubolu Venkataranam husband of plaintiff died intestate. The plaintiff did not refer the Ex.A2/will at any where though she has knowledge about the same and the plaintiff did not take any steps to prove the signature of the executant on Ex.A2/will. The contention of learned counsel for the plaintiff that the defendants have not taken any steps to sent the Ex.A2/will for comparison and expert opinion as such the plaintiff proved the will also not tenable as it is the burden of the plaintiff to prove the same. Even in the absence of any such steps taken by the defendants, it is the burden of the plaintiff to invoke such steps for proving the signature of executant on Ex.A2/will when the defendants denied the same. Therefore, viewed from any angle the plaintiff failed to prove due execution of Ex.A2/will and also to remove the suspicious circumstances surrounding the execution of
Ex.A2/will.
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Even assuming a moment that Ex.A2/will is said to be proved, the plaintiff has to prove that her husband has a testamentary capacity to execute Ex.A2/will in her favour by bequeathing plaint schedule property.
According to the contention of the plaintiff, her husband got the property through registered settlement deed/Ex.A1 executed by his father
Paddaraju. But the contention of the defendants is that the father of
Venkata ratnam had no exclusive right over the plaint schedule property to execute Ex.A1 as it is ancestral joint family property and the D1,D2 along with suseela Daughter of Paddraju are having shares in the same and they are not parties to the Ex.A1/settelment deed and the same is void and not acted upon.
In a decision between “Pagadala Bharathi and another Vs.
Radhakrishna” it was held that if the document satisfies all the requirements of a gift, then it can only be a gift settlement deed, therefore the settlement deed is also compulsory attestable document.
As per Section.68 of Indian Evidence Act, if a document required by law to be attested, it shall not be used a evidence until one attesting witness at least has been called for the purpose of proving its execution. But the plaintiff did not choose to examine any of the attestors of
Ex.A1/settlement deed. Further PW1 during her cross examination admitted that the plaint schedule property is ancestral property of late
Arabolu Venkata Ratnam and schedule property was bequeathed to her husband by her father in law and she placed her ignorance whether her father in law and her brother partitioned their property and what property fell to the share of her father in law and under what circumstances her father in law executed gift settlement deed in favour of her husband. though PW1 denied the suggestion that it was recited in
Ex.A1 that the house is ancestral property of her husband recitals of 21
Ex.A1 clearly shows that the property covered by it is ancestral property of settlor Padmaraju. However, since the plaintiff failed to examine any of attestor of Ex.A1/settlement deed and produced any other evidence
before this court to prove the execution of Ex.A1/settlement deed, it shall
not be used as evidence. Even for a moment Ex.A2/settlement deed be used as evidence, the plaintiff shall prove that the padmaraju had exclusive right over the property covered by it to settle the same in favour of Arabolu Venkata Ratnam who is husband of plaintiff and the same was valid and was acted upon. In view of admissions made by the
PW1 that the property covered by Ex.A1/settlement deed is ancestral property and in view of recitals in Ex.A1/settlement deed that the property covered by it is ancestral property and ignorance pleaded by plaintiff whether her father in law and his brother partitioned their properties between them, it can be infer that the settlor under
Ex.A1/settlement deed has no exclusive right to transfer the entire schedule property infavour of the husband of the plaintiff. Therefore, in the absence of proof of Ex.A2/will and Ex.A1/settlement deed, it cannot be said that the plaintiff has got exclusive right over the plaint schedule property hence it can be conclude that the plaintiff has not got exclusive title over the entire plaint schedule property. Accordingly this issue is answered against the plaintiff.
9. ISSUE NO.2:
Whether the plaintiff is entitled for declaration of title and
recovery of possession of the plaint schedule property as
prayed for?
This suit is filed for declaration of title of the plaintiff over plaint schedule property and recovery of possession of plaint schedule property from the defendants.
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In a suit for declaration, the burden is heavily lies on the plaintiff to prove her title over the plaint schedule property irrespective of the weakness of the defendants if any.
No doubt the defendants have taken different pleas and introduced different versions regarding the plaint schedule property and DW2 and
DW3 filed their Chief affidavits filed in lieu of examination in chief by contending that item No.1 of plaint schedule property belongs to 1st defendant and the same is constructed with her Stridhana and paying taxes and her father in law executed will in her favour by bequeathing
Ac.0.14 cents in S.No.4453 of Gadarada village on 1-12-1980 and item
No.2 of plaint schedule property was partitioned between husband of plaintiff and 2nd defendant and Government allotted pattas for two shops in items no.2 of plaint schedule in the name of plaintiff and two shops in the name of wife of 2nd defendant which were not found in their written statements but those are not come to the rescue of the plaintiff to say that as the defendant pleaded different other versions in their evidence without there being any pleadings, the plaintiff proved her claim.
It is well settled law that in a suit for declaration, the plaintiff has to prove her right and title over the plaint schedule property on the strength of her own evidence not on the weakness of the defendants.
Though the learned counsel for the plaintiff argued that the defendants not mentioned about Ex.B9 and also several paragraphs of chief affidavit of DW3 and DW4 in their written statement and all the documents Exs.B4 to B8, B10 and B13 were fabricated documents as the
DW4 during his cross examination stated that there might be a chance to get the tax receipts by influencing the authorities and Exs.B10 and B11 might be also got by influencing authorities, as already stated keeping aside all the different versions of the defendants, their evidence and 23 documents, it is the burden of the plaintiff to prove her title basing on her own strength of evidence.
In view of my finding on Issue No.1, since the plaintiff failed to prove her exclusive title over the plaint schedule property she is not entitled for the declaration of title as prayed for. Since the plaintiff is not entitled for the declaration of her title over the plaint schedule property, the consequential recovery of possession of the same after ejecting the defendants therefrom as prayed by the plaintiff does not arise. Therefore, the plaintiff is not entitled for declaration of title and recovery of possession of the plaint schedule property as prayed for. Accordingly this issue is answered against the plaintiff.
10. Additional Issues:
1. Whether the plaintiff is entitled to recover Rs.84,000/-
towards rents on item No.C of plaint schedule property
from January 2013 to June 2014 as prayed for?
2. Whether the plaintiff is entitled for future rents as prayed for?
Since the plaintiff failed to prove her exclusive title over the plaint schedule property and is not entitled for declaration of her title and recovery of possession of the same, she is also not entitled to recover
Rs.84,000/- towards rents on item No.C of plaint schedule property from
January 2013 to June 2014 and future rents as prayed for. Accordingly this issue is answered against the plaintiff.
11. ISSUE NO.3:
To what relief?
In view of my findings on issue Nos. 1 and 2, Additional issue Nos.1 and 2, the suit of the plaintiff is liable to be dismissed.
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12. In the result, suit is dismissed with costs.
Dictated to the Steno - Typist, corrected and pronounced by me in
this the 10th day of February, 2025.
Sd/-Smt.B.Padma
II Addl. Civil Judge(Senior Division), Rajamahendravaram.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:
PW1:Arubolu Ganga Bhavani.
PW2:Kadimella Trinadha Sanga Vara Prasad.
PW3:Pepakayala Rambabu.
PW4:Bathina Tata Rao
FOR DEFENDANT:
DW1:Adabala Durga Prasad.
DW2: Kola Satyanarayana.
DW3:Arubolu Lakshmi Narayanamma.
DW4: Arubolu Ramalingeswara Rao.
DW5: Rasa Venkanna.
DW6: Adabala Satyanarayana Murthy.
DW7: Arubolu Rajababu.
DOCUMENTS MARKED
FOR PLAINTIFF:
Ex. A1:Registration extract of the settlement deed executed by 25
Arabolu Padmaraju in favour of Arabolu Venkata Ratnam dated 24.06.1993.
Ex. A2:Unregistered Will executed by Arabolu Venkata Ratnam dated 20.06.2012.
Ex. A3:Death certificate of Arabolu Venkata Ratnam.
Ex. A4:Office copy of the legal notice got issued by the plaintiff dated 06.05.2014.
Ex. A5:Acknowledgment of the 1st defendant.
Ex. A6:Acknowledgment of the 2nd defendant.
Ex. A7:Acknowledgment of the 3rd defendant.
Ex. A8:Acknowledgment of K.Srinivas.
Ex. A9:Acknowledgment of 5th defendant.
Ex. A10:Acknowledgment of 6th defendant.
Ex. A11:Photo along with CD.
Ex. A12: Photo along with CD.
Ex. A13: Photo along with CD.
FOR DEFENDANTS:
Ex. B1:Registered sale deed executed by D1, D2 and D4 to D6 in favour of him dated 20.11.2013.
Ex.B2:Rectification sale deed executed D1,D2 and D4 to D6 dated 04.06.2019.
Ex.B3:List of original receipts of CC charges pertaining to schedule shop.
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Ex.B4:Original non availability certificate issued by the Panchayat
Secretary Grama Panchayat, Gadarada Village relating to the event of death of Arubolu Venkata Ratnam, S/o. Padmaraju was not registered in its records.
Ex.B5:Certified copy of meeseva of Registered sale deed vide document No.3677/2017 of the office of the Sub-Registrar,
Korukonda executed by Arubolu Ganga Bhavani (plaintiff) and others in favour of Dommeti Sai Sannitha dated 14.07.2017.
Ex.B6:Original certificate issued by the Korukonda Primary
Agriculture Cooperative Credit Society limited Korukonda.
Ex.B7:Original Bunch of tax receipts.
Ex.B8:Original certificate issued by the Grama Panchayat Secretary
Grama Panchayat , Gadarada relating to the taxes paid by the 1st defendant to the panchayat with regard to D.No.2-58.
Ex.B9:Original understanding letter executed by the 1st respondent plaintiff dated 20.10.2018.
Ex.B10:Original patta issued by Government of Andhra Pradesh in favour of plaintiff.
Ex.B11:Original patta issued by Government of Andhra Pradesh in favour of Arubolu Ramatulasi.
Sd/-Smt.B.Padma
II Addl. Civil Judge(Senior Division), Rajamahendravaram.